Contrary to what many newspapers reported, the ECJ did not permit or issue a ‘Muslim headscarf ban’

Headline afterheadline afterheadline yesterday, from across the political spectrum, erroneously reported that the European Court of Justice (ECJ), the top court of the European Union, has ruled that bans on Muslim headscarves in the workplace can be legal. But this is not accurate and such headlines risk causing a huge amount of acrimony if, for example, employers try to bring in such bans when in fact they don’t have the law on their side.

To be fair to the journalists who wrote all the headlines, theECJ press release on the matter is very confused. It starts off by simply saying ‘An internal rule of an undertaking which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination’. But it doesn’t define anywhere what direct discrimination means, and doesn’t talk about its sibling, indirect discrimination, until well into page two – and when it does, it’s fairly muddled in the language it uses. We at the British Humanist Association had to read it through about three or four times before we got our heads round it.

So, let’s try and clear things up a bit. Essentially in equality and human rights law there are two types of discrimination. Direct discrimination, as it relates to religion or non-religious beliefs, is where you have a policy that targets someone because of their religion or belief.

Indirect discrimination is where you have a policy that does not target someone because of their religion or belief per se, but it nonetheless puts individuals of particular religions or beliefs at a disadvantage, when compared to those of other religions or beliefs.

Yesterday’s ruling actually focussed on two different cases – one from Belgium and one from France. In both cases, the employer had a policy of not allowing employees to wear religious dress or symbols. This led to two Muslim employees wearing the headscarf to be fired. They then took the cases through the domestic courts and finally up to the European court.

Neither employer’s policy was deemed to target Muslims specifically, so it was not found to be direct discrimination. That seems to me to be correct.

However, indirect discrimination is not always unlawful. It can in fact be lawful where the discriminatory requirement can be said to be a ‘genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.’

A clear example of this is acase heard at the European Court of Human Rights (ECtHR) in 2013, involving a nurse called Shirley Chaplin. She was wearing a cross around her neck, and her NHS Trust deemed that this posed a risk to her and patients’ safety in case ‘a disturbed patient might seize and pull the chain, thereby injuring herself or the applicant, or that the cross might swing forward and could, for example, come into contact with an open wound.’ Her Trust asked her to wear the cross on a pin instead. She refused and took a human rights case. She lost the case because it was found that her employer’s request that she wear the cross on a pin instead of a chain was a proportionate means of pursuing the legitimate objective of patient safety.

On the other hand, a case where an employer was found to have got it wrong was the case of Nadia Eweida, which wasalso determined at the ECtHR in 2013. She also wanted to wear a cross round her neck, and her employer, British Airways, said that this went against their uniform policy. This was deemed not to be a proportionate means of achieving a legitimate aim and so her claim of indirect discrimination was successful.

In yesterday’s two cases the ECJ made no ruling as to indirect discrimination. It set out the tests by which the indirect discrimination could possibly be lawful. This included the problematic concept that it might be okay to require no religious symbols in customer-facing staff, which seems to me to go further than the ECtHR ruling with Eweida did (and, Darren Newman has argued, is less likely to be seen by European courts as okay in a UK than in a French/Belgian laïcité framework). But it did not rule on the matter. Instead it remitted the question of legality back to the Belgian and French courts to decide, and merely speculated about possibilities of moving staff to different roles.

These two cases were decided under the European Employment Directive, hence they went to the European Court of Justice, whereas the two cases from 2013 were decided under the European Convention on Human Rights and hence they went to the European Court of Human Rights. But the indirect discrimination law is essentially the same in both sets of courts. So I find it hard to see how, given the 2013 decisions, the Belgian and French courts will be able to do anything but uphold the indirect discrimination claim (or if they do, how, if it then goes back to the ECJ, it will be able to do anything but likewise).

And even if the eventual ruling is against a claim of indirect discrimination, the ECJ remains just one of two legal avenues open to these two employees – they can also take an ECtHR claim. And I can’t see how the ECtHR can rule in a different way here to how it did in the Eweida case.

Headlines saying the ECJ has allowed employers to ban headscarves are premature at best and completely wrong at worst.

I am just another Bangladeshi seeking to build his life in this country of 140 millions, going through everyday struggle. Struggle – we have had many and they seem endless. However, the people of Bangladesh (once claimed a top place in the global happiness index) are not used to complaining; they never were. They wish for lives full of peace and dignity. They want to see their country run democratically and justly.

This land and its people were famous for decades for communal harmony and respects for all people of different faiths and beliefs. In the past, beginning from the Pakistani period (Bangladesh was the eastern wing of Pakistan), Bangladeshis stood still against oppression, communalism, and fanaticism. Bullets, tanks, bombs couldn’t stop the freedom loving people of Bangladesh from claiming what is legit, what is right, what is fair. The result was amazing and incredible. Today, 21 February is observed as the international mother language day, owing to the martyrdom the young Bangladeshis embraced. And also, most of all, independence, we won it after spending nine months under occupation, rape and genocide. Three million Bangladeshis sacrificed their lives. Yet, we don’t find it too expensive; freedom, dignity, and respect are always earned at a price. To us, this is what it takes for democracy: religious freedom, freedom of speech, and equal rights for every inhabitants residing in this land. Our original constitution never included a state religion. It championed secularism as the pillar of the newborn state of Bangladesh. Because of this, we were well on our way towards becoming a country that would treat its citizens equally regardless of their gender, religion, caste and belief.

‘Our original constitution championed
secularism as the pillar of the newborn
state of Bangladesh.’

With time the paved path faded away. Unfortunately for us, our rulers failed to stick to the motto based on which a great nation saw its dawn. They indiscriminately and incessantly used religion to buy cheap public sentiment. Or, in some cases they behaved as though ‘blindfolded’ to keep political momentum in their favour. When you are detached from your values, your morals you are due to be doomed. That’s what we can see in today’s Bangladesh. In recent months, bloggers who have been written against extremism, war criminals, and expressing their thinking on matters like religion have frequently been attacked. Many of them were hacked to death in broad daylight. Unfortunately, our government, as always, has failed to take a firm stance against these sorts of atrocities. There is no case where the perpetrators were brought to justice or given exemplary punishment. No wonder, then, that extremists do not refrain from carrying on such gruesome killings.

‘The intensity of extremism is gradually
spoiling all our achievements.’

The intensity of extremism is gradually spoiling all our achievements. For instance, as per as the UN index, Bangladeshi women are doing better in all fields including education and employment in comparison with their counterparts in India and Pakistan. Last year, a fanatic faction called Hizb ut-Tahrir raised a demand calling for end of female empowerment! If their demand was met, women would be reduced to little else but machines which give birth and raise children. The fanatics would not dare to think that the GDP of Bangladesh today, the second highest in South Asia after India, could be achieved without the contribution of Bangladeshi women. They work hard all day and night to feed their families, and at the same time, they take care of an entire household. If we refuse their contributions, if we held them back, Bangladesh will never be self-reliant. Grameen Bank, founded by Nobel laureate Muhammad Yunus, is the only institution in Bangladesh which has achieved the feat of winning the sole Nobel prize for our country. About 90% members of this organization are women from all around Bangladesh.

Some bloggers who have been killed for raising these issues were blamed for blasphemy attributed on them by the extremists. There have even been attempts to justify these killings claiming that the bloggers crossed a line by hurting the religious sentiments of les gens. OK, I take it that many of their ideas might be hard for others to consume; sometimes they are sensitive. But, is it really permitted to kill someone for their writing? Leaving aside freedom of speech, what does Islam itself tell us about it? I think a story from Prophet Muhammad’s life should be a reminder to the faithful. During his cumbersome days in ancient Arabia, when the prophet first began to preach Islam, he was being tortured and laughed at. One day, an old woman spread thorns all over the way he would travel. The prophet on his way found it very difficult to keep walking and his feet were hurt. But he didn’t utter a word against the old lady, who vehemently opposed Muhammad’s preaching of Islam. The story goes, this continued for days and the prophet never did any harm to the old woman. One day, he saw that the path he would walk on was clear; there was no sign of thorns. Instantly, he rushed to the old lady’s house and found her sick in bed. There was no one to take care of her. The prophet could have killed the woman instantly to avenge all the miseries imposed upon him. But he didn’t do so. He took care of the woman like his own mother and made her stand on her feet again.

There is a saying that you can kill a person but not his ideas. The more you try to suppress an idea, the stronger it becomes. Students, intellectuals and freethinkers are uniting to defy threats and torture. The extremists thought it would be enough to kill someone to bury the ideas he or she conveys; but what they miss is that by doing so, they are igniting the spirit of secularism more than ever.

The numbers are in (and have been for a while). Can politicians really keep insisting this is a ‘Christian country’? Photo: Chris Combe.

Elected officials to this day continue to cite the Census to make the point that Britain is a ‘Christian country’ or a country made up principally of Christians. The Census statistic of 59% is used to justify all sorts of privileges granted to the religious in Britain today, including the widespread handing over of public services and schools to religious control and the place of unelected bishops in our legislature, not to mention the recurrent exceptionalising of Christian contributions to our shared cultural life. But is that statistic true? Is it any good?

The likely answer is no, and any demographer can tell you why. By asking the leading question ‘What is your religion?’ in the context of a series of questions about ethnicity and cultural background, the Census leads to higher numbers of people identifying themselves with their family or cultural religious background, and for the most part not with that they actually believe, feel they belong to, or practise.

The Census statistic is used to justify all sorts of privileges granted to the religious in Britain today. But is it any good?

Most other rigorous surveys will tell you a different story – the story of a very diverse Britain united for the most part by common values which straddle the ‘religious divide’. The most recent of these surveys was by YouGov this April, and it found that around two thirds of Britons, when asked, would say they are ‘not religious’.

The April poll, commissioned by the Sunday Times, asked the question ‘Would you describe yourself as being a practicing member of a religion?’ and found that 62% of the general public said ‘no’. Christianity polled as the second most popular option, accounting for 33% of the public. And it’s by no means a one-off. Most polls of the last decade have given very similar results.

This majority ‘not religious’ figure has been found repeatedly in recent years. A recent example of this trend is the Survation poll last November, which asked ‘Do you consider yourself religious or not religious?’ and found that 60.5% of Brits are the latter. These figures are in turn consistent with year-on-year polling from the British Social Attitudes Survey, which finds that around or slightly over half of the population is in fact non-religious (and that 42% Brits identify as Christian) when it asked ‘1. Do you regard yourself as belonging to any particular religion? 2: If yes: which?’. A YouGov poll in April 2014 also found that 50% of Brits were non-religious, and that three quarters of the population were ‘not religious or not very religious’. Very similar results in 2011 and 2012, and numerous others, overwhelmingly reinforce the pattern.

We can say with some confidence that half of Brits are non-religious

Equally, the one third figure for believing Christians has been found time and time again. A YouGov poll for the Times in February this year found that only 55% of British Christians ‘believed in God,’ bringing the total proportion down from 49% of Britons who say they are Christian to around 23% for ‘Christians who believe in God’. A 2013 YouGov poll which asked how many people in Britain believed in the central tenet of Christianity – that Jesus of the Nazareth was the son of God – found a figure of 30%. It’s that same figure again – around a third

In most aspects of their jobs, politicians look closely at these sorts of surveys when making policy decisions, or when attempting to win over new voters with popular initiatives. They know, and statisticians can tell you why, that the margin of error on these things is usually around 1-3%. So I feel we can say with some confidence that half of Brits are non-religious (only 4% of ‘nones’, according to the Times/YouGov 2015 poll, ‘believe in a god’) and that beyond that, two thirds are ‘not religious’ – in the sense of not seeing religion as very important or not practising. It’s a widespread trend: only 30% of Brits are believing Christians, and only 6% or fewer Brits go to church on a given Sunday.

Much more importantly, three quarters of Brits say they are opposed to public policy decisions being influenced by religion

The Census result would suggest that three quarters or more of Brits, cutting across the religious divide, would cite some sort of Christian cultural background, but this is a broad group indeed – both Justin Welby and Professor Richard Dawkins would say they are culturally Christian! Much more importantly, three quarters of Brits say they are opposed to public policy decisions being influenced by religion – with 92% of Christians agreeing that the law should apply equally regardless of religion.

Politicians trotting out the old Census figure to justify handouts or, engaged in cynical vote-grabbing, should remember that most of us want to be treated equally and want a level playing field – including by opposing ingrained religious privilege, such as by opposing ‘faith’ schools and bishops in the House of Lords. Of course, politicians are not won over by opinion polls alone, and most are wary of the power of religious institutions, whose views tends to be a bit more traditional than those of their flocks. But change is inevitable, and on the way – the fact that the next generation rising through the ranks is overwhelmingly non-religious could well promise to erode the power of churches over our elected representatives.

Jeremy Rodell discusses the meaning of ‘secularism,’ among other things. Note: this article first appeared on Sarah Ager’s Interfaith Ramadan blog.

Hundreds rally for the March for a Secular Europe

What is Secularism?

Let’s start with what secularism means to secularists.

The British Humanist Association (BHA) defines secularism as ‘the principle that, in a plural, open society where people follow many different religious and non-religious ways of life, the communal institutions that we share (and together pay for) should provide a neutral public space where we can all meet on equal terms. State Secularism, where… the state is neutral on matters of religion or belief, guarantees the maximum freedom for all, including religious believers.’

The UK’s National Secular Society (NSS) adds that it’s ‘not about curtailing religious freedoms; it is about ensuring that the freedoms of thought and conscience apply equally to all believers and non-believers alike.’

So a secular state does not mean denying the role of Christianity and other religions – for both good and ill – in history and culture. It does not mean that religious people must forego their principles if they enter public life. Perhaps most important of all, it does not mean a society lacking in values. There’s a fairly clear set of liberal, human values shared by the majority in the UK and most other western countries, including freedom of speech, thought and belief; respect for democracy and the rule of law; equality of gender, age and sexual orientation and the view that fairness and compassion are virtues. Many of these values are enshrined in law.

The BHA and the NSS really ought to know what they’re talking about here. Unfortunately, many people, usually people who are not themselves secularists, use ‘secularism’ interchangeably with ‘atheism’ or ‘Humanism’. The previous Pope even talked of “militant Secularism”, meaning “militant Atheism” (despite the fact that the weapons used by ‘militants’ like Richard Dawkins are writing books and giving lectures, not planting bombs). But you can be religious and secularist. In fact the unequivocally Muslim, anti-Islamist campaigner, Maajid Nawaz, has just become an Honorary Associate of the NSS.

The reason for this confusion is that western countries have only become secular – to varying degrees – after many centuries in which the Church was a major power in society and there were constraints on freedom of thought and expression. Much of that power has been eroded since the Enlightenment, but battles are still going on. For example, 26 unelected bishops remain sitting as of right in the British Parliament, and many state-funded schools can discriminate in their admissions simply on the basis of parental belief. It’s no surprise that the protagonists in these battles are usually churches on one side, and humanists and other atheists on the other. If you’re on the side of the churches, it probably feels that secularism and atheism are the same thing – The Enemy.

That’s a mistake. Not only does it ignore the common ground between Christians and humanists, but it focusses on loss of religious privilege and influence, ignoring the fact that Secularism also guarantees freedom of religion and belief, and the freedom of thought and expression that goes with it. That’s important, given the realities of faith and belief in much of the modern world.

Growth of pluralism

According to the 2013 British Social Attitudes Survey, 51% of the British population are now “Nones” – people who do not consider themselves as belonging to any religion. It was 31% in 1983. Only 16% are now Anglicans, the Established Church (40% in 1983), 12% non-denominational Christians, such as African Pentecostal (3% in 1983), 9% Catholics (10% in 1983) and 5% Muslims (0.6% in 1983), with Hindus, Sikhs, Jews, Buddhists and other types of Christians making up most of the balance (all under 2%). Within each of these groups there is a lot of diversity: at least 10 different sects comprise the 5% Muslims, and the 0.5% British Jews range from ultra-Orthodox to Liberal. So we’re seeing both a big decline in religiosity and an increase in pluralism. It’s hard to imagine a more plural global city than London.

In many non-western countries, the inter-connectedness of the modern world, and wider awareness of differing beliefs – including Atheism – is also tending to increase pluralism, or at least the desire for pluralism. At the same time, it is increasingly under threat, often because of war and the active spread of an intolerant Wahhabi strain of Islam.

Secularism versus oppression

Secularism is as necessary to protect believers from other believers as it is to protect atheists.

You can currently be put to death simply for the ‘crime’ of atheism in 13 countries, according to the International Humanist andEthical Union’s 2013 Freedom of Thought Report. Saudi Arabia has now passed a law declaring atheists to be terrorists. In Mosul, in northern Iraq, there has been a Christian community for around 1600 years. In 2003 there were 70,000 Christians living there. Now ISIS have taken over and they have all fled. In Burma the government seems to be doing little or nothing to stop extremist nationalist Buddhist groups from massacring Rohinga Muslims. In Pakistan there’s growing evidence of ethnic cleansing of Shia Muslims by Sunni terrorist groups – the word ‘genocide’ is appearing – and it is illegal for Ahmadiyya Muslims to claim to be Muslim. Often they are simply killed. In Malaysia, Christians have been legally forbidden to use the word “Allah” to refer to God, even though they have been doing so for hundreds of years. In Iran there is institutionalised persecution of Baha’is .

Sadly, there are many other examples where the response to pluralism is oppression. Often it’s entwined with political power, driven by fear of losing power – or simply of change – and lack of confidence that the favoured belief will succeed in a plural environment.

Secularism is the alternative response to pluralism. Ideally it’s complemented by the type of mature democracy that avoids “winner takes all” outcomes such as we saw in Egypt under President Morsi.

The faithful need secularism because it guarantees their freedom, and in some cases their survival. It is the only alternative to oppression in a fast-changing, inter-connected plural world.

Atheist Scout leader Ralph Parlour presents his own personal view on the recent reforms made by the Scout Association and Girlguiding UK.

Scouts take the promise at Brownsea Island, Dorset. Photo: Tim Ellis.

On the 1st of September 2013 and the 1st January 2014, the British Guide and Scout Associations respectively changed their promises, opening both movements to atheists and humanists.

The promise is a central and important aspect of both movements, and all who wish to become members have to make it. The changes made are quite radical given the religious origins of both movements. Before these changes, all guides, irrespective of their own beliefs (or lack thereof) had to promise to ‘love God,’ and scouts had to promise to ‘do my duty to God.’ Even more importantly, the Scout Association has lifted a formal ban on atheists becoming full leaders. Although the ban was not strictly enforced and many atheists like me were already leaders, it is a relief to no longer have to hide my (non-)belief, or to have to ‘cross my fingers’ when making the promise.

Now instead of saying to ‘love God,’ all Guides now promise ‘to be true to myself and develop my beliefs.’ The Scouts however have taken an alternative approach and instead of completely throwing out the old religious oath, they have introduced a new promise that atheists can choose to say instead. ‘To do my duty to God,’ in the revised promise, has been replaced with ‘To uphold our Scout values.’ It is however the case that the religious oath will continue to be the default, so most new members will continue to take the religious oath, while atheists can request the secular alternative.

The Scout Association’s reforms have been widely supported, even by religious figures. Paul Butler, Bishop of Southwell and Nottingham, said that ‘In enabling people of all faiths and none to affirm their beliefs through an additional alternative promise the Scout Movement has demonstrated that it is both possible, and I would argue preferable, to affirm the importance of spiritual life and not to restrict meaning to arbitrary self-definition.’

There has however been some resistance to the changes made by the Guides. The main contention is that, unlike the Scouts there is no option to choose a religious oath. There are several Guide groups that have refused to adopt the new promise and continue using the old, religious one. While I have found no article from any major newspaper or website critical of the changes made by the Scouts, the reforms in the guides have come under considerable criticism, especially from the conservative Right. The Church of England General Synod, on 12th February 2014, passed a resolution saying that ‘girls and women of all ages in the Girlguiding Movement should be able to continue to promise to love God when enrolled,’ and Alsion Ruoff, a member of the Synod, claimed that the change is ‘rank discrimination,’ and that it is part of the ‘further marginalisation of Christianity in this country.’

Girlguiding UK has offered a concession, saying that Guide troops could, if they choose, have their own religious pre-amble to any swearing in ceremony, and say something like ‘In the presence of God I make my Guide Promise.’ But it is still too early to know whether this concession will be acceptable to critics.

These changes should rightly be seen as a victory for secularism and an advance against superstition. These changes will strengthen both youth movements, the Scouts especially, making them more appropriate to an increasingly secular nation. But while claims of discrimination are obviously spurious (given the favourable treatment of religious institutions, especially the Church of England), the Girl Guides do seem to have been heavy handed in response to groups refusing to adopt the new promise. The First Jesmond Guides for example have been threatened with expulsion from Girlguiding UK if they do not conform.

In an ideal world, not only would the secular promise be the default but there would be no religious promise at all. Despite this, I think it is important to not force people, atheist or theist, to make a promise they are not comfortable with.

Additionally, the relationship between these uniformed youth groups and organised religion is deep, so to sharply turn these groups secular could cause significant harm. Many groups, my own included, meet in a church hall and are not charged for the privilege. Without such an available, and low-cost meeting place, it would be much more difficult to keep the troop afloat financially and I have no doubt that many troops would close without the aid of churches. Both organisations do considerable good, and benefit not only their members but society in general. So an overzealous approach that harms the organisations, even if born of good motives, would be like cutting off the nose to spite the face.

The heavy handed approach taken by Girlguiding UK has damaged the organisation and has alienated some lifelong members. As a lifelong Scouter, I feel that it would be preferable to accommodate some heterodoxy, in order to keep the organisation unified, strong and better able to continue the valuable work they carry out. All this controversy within the Guides is, ultimately, over one sentence, albeit a very important sentence, so I wouldn’t have thought it too difficult, or too offensive to the sensibilities of secularists, to allow Guides the same choice in promise as the Scouts.